The NSW, Tasmanian and Western Australian Attorneys-General have all announced their support for State Charters of Rights, following the lead of their Victorian counterpart.
The campaign for a Federal Human Rights Bill may eventually persuade the Federal Parliament to impose a national Charter (or Bill) of Rights, but it will have to overcome the recently – and publicly – expressed opposition of the Prime Minister and Attorney-General Philip Ruddock. Assuming they stay around for a while longer and their views continue to hold sway in Canberra, State-based Charters of Rights would be a much better than nothing.
It is often said that Australia has no federal Bill of Rights. However it is not true to say that we have no legislated human rights.
In fact, the oldest piece of legislation effective in Australia — enacted in England in 1297 — implemented an amended version of one of the earliest charters of rights and obligations.
That document was, of course, the Magna Carta (‘Great Charter'), which was forced on King John at Runnymede on 15 June 1215. One clause of Magna Carta, Chapter 29, remains effective in Australian law today. It reads, in part:
No free man shall be taken or imprisoned – or be outlawed or exiled – but by lawful judgement of his peers or by the law of the land
That passage is of largely historical significance now, but it is the ultimate source of the rights to liberty and fair trial embodied in Article 5 of the American Constitution, Articles 9 and 18 of the International Covenant on Civil and Political Rights and, incidentally, in sections 15 and 18 of the Human Rights Act Campaign's proposed Human Rights Bill.
You may be surprised to know that several other ancient English Acts remain part of Australian law and also contain rights provisions. The Bill of Rights 1688, for example, is the basis of parliamentary privilege.
These rights have existed in Australian law from 1788.
In 1901 the Commonwealth Constitution introduced a handful of rights into Federal law including freedom of religion and the requirement that the government pay compensation where it compulsorily acquires private property. However, the rights in the Constitution are narrowly defined.
Some long-standing Federal and State legislation also contain limited human rights. Examples include legislation dealing with anti-discrimination, industrial relations, freedom of information and privacy.
Thus, while some human rights are recognised in Australian law, the protection offered is limited and piecemeal, and scattered across various pieces of legislation.
The models for protecting rights now in contemplation in the States are ordinary Acts of Parliament and can therefore be said to merely extend enactments commencing in the 13th Century, and to collate them in a comprehensive document.
You may ask why a State Charter of Rights is important. Are not State Governments little more than jumped-up local Councils? Surely a State Charter of Rights would achieve little?
This ignores the almost complete absence of human rights in State Constitutions. As a result, State parliaments can legislate to confiscate property without compensation and prohibit a religion, unlike their Federal counterpart.
Furthermore, it is State law which overwhelmingly administers criminal justice and policing. The great bulk of law enforcement falls to State police, who prosecute criminals in State courts. International experience tells us that once a Charter of Rights is introduced, its major initial effect is in the area of law enforcement.
So a Charter of Rights in one or two of the larger States would be a very major improvement, for those reasons alone.
The formal legal framework of a Charter of Rights would also reduce pressures on State Governments to unnecessarily abridge civil liberties and rights when faced with terrorist or similar threats.
A further benefit of a State Charter of Rights would be as an educative tool. It would help to create an understanding of, and respect for, human rights. This would strengthen the case for a national Charter or Act as fears receded after the trouble-free implementation of a moderately-cast State alternative.
It is true that a statutory Charter or Rights or Human Rights Act would not prevent the Parliament from ever overriding human rights. But this would not makie it ineffective. On the contrary, a Charter of Rights or Human Rights Act, particularly one based on the well-recognised International Covenant on Civil and Political Rights, would provide a framework for assessing new laws and would ensure that governments justified to the parliament and to citizens any decision to override rights.
A statutory rather than constitutional Charter would also avoid criticisms that rights would be set in concrete and that power would shift to unelected courts to interpret rights without regard to the democratic will. In other words a Charter could preserve parliamentary sovereignty — that is, the parliament's role as the maker of laws for good governance — while improving the processes in place to balance rights.
Another argument against a Charter of Rights is that it would give rise to a flood of litigation or, as Mr Ruddock calls it, a lawyers' feast. The State Charters being considered will likely give the courts power to declare a law incompatible with the Charter but not to strike down the offending provision. No significant increase in litigation would therefore be likely
A State Charter of Rights would also have other benefits. Apart from providing much needed protection for rights, it could shift the focus from law and order and service delivery to a new, idealistic measure which may do something to refresh State politics.
It should not be forgotten that the most successful State Labor Governments of the past have invariably drawn support not only from their traditional working class base but also from civically-minded middle-income earners. Neville Wran and Don Dunstan were great exponents of that strategy.
Given the cost of implementing State Charters of Rights would be minimal and the proposal would do much to keep faith with the ALP's membership, we can expect the States to consider these proposals very seriously.
It is time after 800 years for another Great Charter in the States, like the Magna Carta was for the 13th Century, but revised for the conditions of the 21st Century.